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Tag Archives: Necessary and Proper Clause

The Constitution simply gives Congress the power to regulate interstate commerce. And not all activities comprised in “health care” occur in transactions that are properly considered interstate commerce. In fact, significant portions of it (e.g., the manufacture of products used in health care, the use of those products by health-care providers, and the personal services rendered by health-care providers) clearly occur outside the activities properly understood as interstate commerce: the sale and transmission of goods (tangible and intangible) across State lines.

With regard to the second question, it follows that the mandate cannot be “necessary and proper” if Congress lacks the authority to regulate “the massive interstate market in health care,” in the first place….

…If the power of Congress to regulate “health care” cannot be found in its power to regulate interstate commerce, where can it be found? Nowhere in the Constitution. And if such a power cannot be found in the Constitution, then there can be no “necessary and proper” law that requires individuals to buy health insurance….

The defenders of Obamacare and the individual mandate would argue that it is “necessary and proper” to regulate activities (commercial or not) that are tangentially related to the portion of “health care” that is comprised in interstate commerce. That is so, in their view, because otherwise the effort to regulate the portion comprised in interstate commerce would fail to have the desired effect. In other words, they would regulate everything that can be labeled “health care,” and everything beyond that which threatens to undermine the intended regulatory outcome.

In so many words, the defenders of Obamacare and the individual mandate, like many others before them, want Congress to have the power to regulate anything and everything that they want Congress to regulate….

James Madison held the same view:

…[T]he Constitution did not give Congress the power to establish an incorporated bank. Hamilton, [Madison] said, was urging the legislators to charter the bank based on the power that Article I, Section 8 of the Constitution gives them “to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers”—specific, limited powers that the section had just enumerated. But notice what “ductile” language Hamilton must use “to cover the stretch of power contained in the bill.” As the bill puts it, the bank “might be conceived to be conducive to the successful conducting of the finances; or might be conceived to tend to give facility to the obtaining of loans,” Madison quoted, adding emphasis oozing with incredulous contempt. So to begin with, the bank wasn’t even “necessary,” as the “necessary and proper” clause required; “at most it could be but convenient.”

Worse, Madison suggested, Hamilton’s reliance on a doctrine of implied powers instead of explicit ones courted disaster. “The doctrine of implication is always a tender one,” he warned. “Mark the reasoning” behind the bill: “To borrow money is made the end and the accumulation of capitals, implied as the means. The accumulation of capitals is then the end, and a bank implied as the means.” By such a chain of implication, we end up with “a charter of incorporation, a monopoly, capital punishments, &c.,” until finally we take in “every object of legislation, every object within the whole compass of political economy.” In that case, Madison cautioned, the “essential characteristic of the government, as composed of limited and enumerated powers, would be destroyed,” and Congress would bear “the guilt of usurpation.” We should not, he later wrote, “by arbitrary interpretations and insidious precedents . . . pervert the limited government of the Union, into a government of unlimited discretion, contrary to the will and subversive of the authority of the people.” (Myron Magnet, “The Great Little Madison,” City Journal, Spring 2011)

As for the Necessary and Proper Clause:

…[M]ost federal regulations today are justified by the Necessary and Proper Clause. They are said to be within Congress’s Interstate Commerce Power— but within not the core Commerce Clause (“The Congress shall have Power . . . To regulate Commerce . . . among the several States”). Rather, they are said to be supported by the accompanying authority to “make all Laws which shall be necessary and proper for carrying into Execution” the power to regulate commerce.

Now, here’s the irony of the situation: Far from granting “broad authority” to Congress, the truth is that Necessary and Proper Clause grants no power at all. It is placed at the end of Article I, Section 8 as an explanation—that is, a “recital.” A recital is a passage in a legal document that has no substantive legal effect, but serves to inform the reader of assumptions or facts behind the document. Another example of a recital in the Constitution is the Preamble.

In recent years, several constitutional scholars have investigated the true meaning of the Clause, and have worked to correct the record. The process began with an article written by Professor Gary L. Lawson and Patricia B. Granger: The Proper Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267 (1994). It focused on the meaning of “proper.” A decade later, I delved into the historical record. I found that wording of this kind was extremely common in eighteenth-century documents granting power from one person to another. I also found the courts had issued cases interpreting this language, and that the Founders had adopted the courts’ interpretation. See articles here and here.

Finally, Professors Lawson and I teamed up with two other noted scholars, Geoff Miller, and Guy Seidman, and wrote a book on the subject. (We all have differing political views, by the way.) The book is called The Origins of the Necessary and Proper Clause, and it was published last year by Cambridge University Press.

Here’s what we found:

* The Clause is a mere recital. It informs the reader how to interpret congressional authority. It does not grant any power.

* The term “necessary” tells the reader that congressional authority is interpreted according to the intent behind the document, rather than very strictly (as the Articles of Confederation required).

* The Clause does this by telling the reader that the legal “doctrine of incidental powers” applies to the Constitution. This means that Congress can regulate certain activities outside the strict reading of its powers, but ONLY IF this ancillary regulation is (1) subordinate to an express power, and (2) a customary or necessary way of carrying out the express power. For example, in regulating commerce, Congress can require accurate labels on goods to be shipped in interstate commerce. But Congress cannot regulate the entire manufacturing process.

* The word “proper” means that a law must comply with Congress’s fiduciary (public trust) responsibilities. A law is not “proper”—and is therefore unconstitutional— if it invidiously discriminates among people, violates individual rights, is utterly irrational, or exceeds congressional authority.

* Contrary to prevailing legal mythology, Chief Justice Marshall’s famous case of McCulloch v. Maryland (1819) did not stretch the Clause, but applied it properly and with due regard for its limitations.

There are sophisticated arguments for unlimited governmental interference in the affairs of citizens. By sophisticated, I mean that they seem, superficially, to resort to the text and meaning of the Constitution. Here is a good example:

I appreciate Ilya [Somin]’s post below on the meaning of “activity” in Commerce Clause jurisprudence, and I wanted to add two brief observations:

1) If I understand Ilya’s argument, he begins with an assumption as to how much power Congress has, and he then reasons backwards to infer the meaning of “activity” in order to make that assumption correct. A conscious decision not to do something cannot be an “activity,” the thinking goes, because that would give Congress more power than a fair reading of the Commerce Clause would permit. Perhaps, but it seems to me that this argument largely assumes its conclusion. It uses the fact that Congress must have significant limits on its power to show that “activity” has a narrow meaning, which then is used to prove that Congress has significant limits on its power that the individual mandate exceeds. If you start with a different assumption, however, the argument doesn’t work. For example, if you start with the assumption about the scope of the Commerce Clause that Justice Kennedy articulates in his Lopez concurrence, then you can get a different meaning of “activity.”

I suspect some readers will object to this argument on the ground that they share Ilya’s assumption: Because Ilya’s assumption is correct, the argument works. That’s a fair point within the group that shares the assumption. The problem is that others don’t share the assumption, and starting with it won’t go very far in persuading them. That doesn’t necessarily mean Ilya is right or wrong. But I do think it means that this argument is likely not have a lot of force among the people not already inclined to agree with it.

2) More broadly, I still think that the easiest path to resolving the constitutionality of the individual mandate is that it is a “necessary and proper” means of trying to regulate the massive interstate market in health care that is around 1/7th of the United States economy. As I have blogged before, I think that’s a very strong argument based on Supreme Court caselaw on the meaning of “necessary and proper.” I realize that Ilya thinks that the Supreme Court precedents on the meaning of “necessary and proper” have not actually addressed what is “proper,” and thus that there is a still yet unarticulated limitation on the scope of federal power that remains to be developed — and that should be read as adding a level of scrutiny that the individual mandate fails to satisfy. But I don’t think the cases can be fairly read in that way, so it seems to me that the necessary and proper clause caselaw leads to the conclusion that the mandate should be upheld without getting into what counts as an “activity.”

Somin has replied to Kerr, who has replied to Somin, who has replied to Kerr, who has replied to Somin, etc. Their exchange could go on forever, so I will strike out on my own and leave Somin and Kerr to fight it out between themselves. In what follows, I use Kerr as a convenient whipping-boy, even though (in my understanding) he is only representing the defenses that others make of Obamacare and the individual mandate.

For my part, I have three questions about Kerr’s glib defense of the individual mandate: First, what does the size of the “market” for “health care” — an amorphous entity — have to do with the power of Congress to regulate it? Second, if “health care,” as an amorphous entity, is not a proper subject of regulation, then how can the individual mandate be a “necessary and proper” enactment? If Congress has always had the constitutional authority to regulate an industry (or something that loosely resembles one) — which it must if the Constitution is to be dispositive — why did it wait so long to exercise that authority (over railroads), in the Interstate Commerce Act of 1887?

With regard to the first question, Kerr seems to suggest that the fraction of GDP spent on “health care” justifies federal supervision of it. The estimates of GDP and its components given in Table 1.5.5 of the National Income Account tables (available here), indicate that health care accounts for 1/9th (not 1/7th) of GDP. The lower value is still a large share of GDP, but there is nothing in the Constitution that gives Congress the power to regulate loosely defined segments of the economy just because they account for more than X percent of GDP.

The Constitution simply gives Congress the power to regulate interstate commerce. And not all activities comprised in “health care” occur in transactions that are properly considered interstate commerce. In fact, significant portions of it (e.g., the manufacture of products used in health care, the use of those products by health-care providers, and the personal services rendered by health-care providers) clearly occur outside the activities properly understood as interstate commerce: the sale and transmission of goods (tangible and intangible) across State lines.

With regard to the second question, it follows that the mandate cannot be “necessary and proper” if Congress lacks the authority to regulate “the massive interstate market in health care,” in the first place. On that point, I refer you to the Constitution. Here are the relevant portions, the “Commerce Clause” and the “Necessary and Proper Clause”:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…. (Article I, Section 8, third clause, emphasis added)

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. (Article I, Section 8, final clause, emphasis added)

To dispose of the third question, the Interstate Commerce Act of 1887, and much that has followed in its vein, is the culmination of raw politics and flawed interpretations of the Constitution. In 1887, Congress responded to public pressure (fomented, no doubt by competing interests and do-gooders) for action to quell the supposedly monopolistic practices of railroads. No principle of constitutional interpretation that takes the Constitution as something more than window-dressing can claim public pressure as a source of constitutional authority, unless public pressure leads to the adoption of a constitutional amendment in accordance with Article V. The many subsequent aggrandizements of Congress’s regulatory power are owed to the excesses of the “Progressive Era,” the “New Deal,” the “Great Society,” and the general failure of the Supreme Court to check those excesses.

Which brings us back to the regulation of “health care.” If the power of Congress to regulate “health care” cannot be found in its power to regulate interstate commerce, where can it be found? Nowhere in the Constitution. And if such a power cannot be found in the Constitution, then there can be no “necessary and proper” law that requires individuals to buy health insurance — or that authorizes Medicare, Medicaid, or their extension through Obamacare.

The defenders of Obamacare and the individual mandate would argue that it is “necessary and proper” to regulate activities (commercial or not) that are tangentially related to the portion of “health care” that is comprised in interstate commerce. That is so, in their view, because otherwise the effort to regulate the portion comprised in interstate commerce would fail to have the desired effect. In other words, they would regulate everything that can be labeled “health care,” and everything beyond that which threatens to undermine the intended regulatory outcome.

In so many words, the defenders of Obamacare and the individual mandate, like many others before them, want Congress to have the power to regulate anything and everything that they want Congress to regulate. This is nothing new under the sun, or the dome of the Capitol. Through the concatenation of the many regulatory regimes that have been granted similarly sweeping powers, Congress works its will on Americans, without regard for their liberty and property. Surely, that is not what the Framers intended when they vested in Congress specific powers — to the exclusion of powers not enumerated.

And so, the real issue — and the main subject of this post — comes down to this: Does Congress’s power to regulate interstate commerce extend to “health care” generally, just because some aspects of it involve interstate commerce? In particular, can Congress constitutionally impose the individual mandate under the rubric of the Commerce Clause or the Necessary and Proper Clause?

To answer that question, I examined the relevant writings of the Framers and two early justices of the U.S. Supreme Court, whose writings are taken as authoritative. (Relevant excerpts are below the fold.) I compared what I found in those writings with the opinions of Justice Clarence Thomas in two salient cases: United States v. Lopez (1995) and Gonzalez v. Raich (2005). I focused on Justice Thomas because he has been the most reliable interpreter of the Constitution’s original meaning since he joined the Court in 1991. It is evident, even to this lay (but experienced) reader of legal documents, that Justice Thomas accurately represents the original meaning of the Constitution with respect to Congress’s regulatory power over interstate commerce. (If you’re anxious to get to the bottom line, scroll past the long excerpts of Thomas’s opinions to the concluding paragraphs of this post.)

Here are relevant excerpts of Thomas’s concurring opinion in United States v. Lopez. In that case, a 5-4 majority held that the Gun Free School Zones Act of 1990, which forbids “any individual knowingly to possess a firearm at a place that [he] knows . . . is a school zone,” exceeded Congress’s Commerce Clause authority:

The Court today properly concludes that the Commerce Clause does not grant Congress the authority to prohibit gun possession within 1,000 feet of a school, as it attempted to do in the Gun Free School Zones Act of 1990…. Although I join the majority, I write separately to observe that our case law has drifted far from the original understanding of the Commerce Clause….

We have said that Congress may regulate not only “Commerce . . . among the several states,” … but also anything that has a “substantial effect” on such commerce. This test, if taken to its logical extreme, would give Congress a “police power” over all aspects of American life….

At the time the original Constitution was ratified, “commerce” consisted of selling, buying, and bartering, as well as transporting for these purposes…. In fact, when Federalists and Anti Federalists discussed the Commerce Clause during the ratification period, they often used trade (in its selling/bartering sense) and commerce interchangeably….

As one would expect, the term “commerce” was used in contradistinction to productive activities such as manufacturing and agriculture. Alexander Hamilton, for example, repeatedly treated commerce, agriculture, and manufacturing as three separate endeavors….

Moreover, interjecting a modern sense of commerce into the Constitution generates significant textual and structural problems. For example, one cannot replace “commerce” with a different type of enterprise, such as manufacturing. When a manufacturer produces a car, assembly cannot take place “with a foreign nation” or “with the Indian Tribes.” Parts may come from different States or other nations and hence may have been in the flow of commerce at one time, but manufacturing takes place at a discrete site. Agriculture and manufacturing involve the production of goods; commerce encompasses traffic in such articles….

The Constitution not only uses the word “commerce” in a narrower sense than our case law might suggest, it also does not support the proposition that Congress has authority over all activities that “substantially affect” interstate commerce. The Commerce Clause does not state that Congress may “regulate matters that substantially affect commerce with foreign Nations, and among the several States, and with the Indian Tribes.” In contrast, the Constitution itself temporarily prohibited amendments that would “affect” Congress’ lack of authority to prohibit or restrict the slave trade or to enact unproportioned direct taxation…. Clearly, the Framers could have drafted a Constitution that contained a “substantially affects interstate commerce” clause had that been their objective.

In addition to its powers under the Commerce Clause, Congress has the authority to enact such laws as are “necessary and proper” to carry into execution its power to regulate commerce among the several States…. But on this Court’s understanding of congressional power under these two Clauses, many of Congress’ other enumerated powers under Art. I, §8 are wholly superfluous. After all, if Congress may regulate all matters that substantially affect commerce, there is no need for the Constitution to specify that Congress may enact bankruptcy laws, cl. 4, or coin money and fix the standard of weights and measures, cl. 5, or punish counterfeiters of United States coin and securities, cl. 6. Likewise, Congress would not need the separate authority to establish post-offices and post-roads, cl. 7, or to grant patents and copyrights, cl. 8, or to “punish Piracies and Felonies committed on the high Seas,” cl. 10. It might not even need the power to raise and support an Army and Navy, cls. 12 and 13, for fewer people would engage in commercial shipping if they thought that a foreign power could expropriate their property with ease. Indeed, if Congress could regulate matters that substantially affect interstate commerce, there would have been no need to specify that Congress can regulate international trade and commerce with the Indians. As the Framers surely understood, these other branches of trade substantially affect interstate commerce.

Put simply, much if not all of Art. I, §8 (including portions of the Commerce Clause itself) would be surplusage if Congress had been given authority over matters that substantially affect interstate commerce. An interpretation of cl. 3 that makes the rest of §8 superfluous simply cannot be correct. Yet this Court’s Commerce Clause jurisprudence has endorsed just such an interpretation: the power we have accorded Congress has swallowed Art. I, §8.

Indeed, if a “substantial effects” test can be appended to the Commerce Clause, why not to every other power of the Federal Government? There is no reason for singling out the Commerce Clause for special treatment. Accordingly, Congress could regulate all matters that “substantially affect” the Army and Navy, bankruptcies, tax collection, expenditures, and so on. In that case, the clauses of §8 all mutually overlap, something we can assume the Founding Fathers never intended.

Our construction of the scope of congressional authority has the additional problem of coming close to turning the Tenth Amendment on its head. Our case law could be read to reserve to the United States all powers not expressly prohibited by the Constitution. Taken together, these fundamental textual problems should, at the very least, convince us that the “substantial effects” test should be reexamined.

The exchanges during the ratification campaign reveal the relatively limited reach of the Commerce Clause and of federal power generally. The Founding Fathers confirmed that most areas of life (even many matters that would have substantial effects on commerce) would remain outside the reach of the Federal Government. Such affairs would continue to be under the exclusive control of the States….

Yet, despite being well aware that agriculture, manufacturing, and other matters substantially affected commerce, the founding generation did not cede authority over all these activities to Congress. Hamilton, for instance, acknowledged that the Federal Government could not regulate agriculture and like concerns:

“The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things in short which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction.” The Federalist No. 17, at 106.

In the unlikely event that the Federal Government would attempt to exercise authority over such matters, its effort “would be as troublesome as it would be nugatory.” Ibid. [n.4]

The comments of Hamilton and others about federal power reflected the well known truth that the new Government would have only the limited and enumerated powers found in the Constitution…. Even before the passage of the Tenth Amendment, it was apparent that Congress would possess only those powers “herein granted” by the rest of the Constitution….

Where the Constitution was meant to grant federal authority over an activity substantially affecting interstate commerce, the Constitution contains an enumerated power over that particular activity. Indeed, the Framers knew that many of the other enumerated powers in §8 dealt with matters that substantially affected interstate commerce. Madison, for instance, spoke of the bankruptcy power as being “intimately connected with the regulation of commerce.” The Federalist No. 42, at 287. Likewise, Hamilton urged that “[i]f we mean to be a commercial people or even to be secure on our Atlantic side, we must endeavour as soon as possible to have a navy.” Id., No. 24, at 157 (A. Hamilton).

In short, the Founding Fathers were well aware of what the principal dissent calls ” `economic . . . realities.’ “… Even though the boundary between commerce and other matters may ignore “economic reality” and thus seem arbitrary or artificial to some, we must nevertheless respect a constitutional line that does not grant Congress power over all that substantially affects interstate commerce.

If the principal dissent’s understanding of our early case law were correct, there might be some reason to doubt this view of the original understanding of the Constitution. According to that dissent, Chief Justice Marshall’s opinion in Gibbons v. Ogden, … established that Congress may control all local activities that “significantly affect interstate commerce,”… And, “with the exception of one wrong turn subsequently corrected,” this has been the “traditiona[l]” method of interpreting the Commerce Clause….

In my view, the dissent is wrong about the holding and reasoning of Gibbons. Because this error leads the dissent to characterize the first 150 years of this Court’s case law as a “wrong turn,” I feel compelled to put the last 50 years in proper perspective.

In Gibbons, the Court examined whether a federal law that licensed ships to engage in the “coasting trade” pre-empted a New York law granting a 30 year monopoly to Robert Livingston and Robert Fulton to navigate the State’s waterways by steamship. In concluding that it did, the Court noted that Congress could regulate “navigation” because “[a]ll America . . . has uniformly understood, the word `commerce,’ to comprehend navigation. It was so understood, and must have been so understood, when the constitution was framed.”… The Court also observed that federal power over commerce “among the several States” meant that Congress could regulate commerce conducted partly within a State. Because a portion of interstate commerce and foreign commerce would almost always take place within one or more States, federal power over interstate and foreign commerce necessarily would extend into the States….

At the same time, the Court took great pains to make clear that Congress could not regulate commerce “which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States.”… Moreover, while suggesting that the Constitution might not permit States to regulate interstate or foreign commerce, the Court observed that “[i]nspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State” were but a small part “of that immense mass of legislation . . . not surrendered to a general government.”… From an early moment, the Court rejected the notion that Congress can regulate everything that affects interstate commerce. That the internal commerce of the States and the numerous state inspection, quarantine, and health laws had substantial effects on interstate commerce cannot be doubted. Nevertheless, they were not “surrendered to the general government.”

Of course, the principal dissent is not the first to misconstrue Gibbons. For instance, the Court has stated that Gibbons “described the federal commerce power with a breadth never yet exceeded.”… I believe that this misreading stems from two statements in Gibbons.

First, the Court made the uncontroversial claim that federal power does not encompass “commerce” that “does not extend to or affect other States.”… From this statement, the principal dissent infers that whenever an activity affects interstate commerce, it necessarily follows that Congress can regulate such activities. Of course, Chief Justice Marshall said no such thing and the inference the dissent makes cannot be drawn.

There is a much better interpretation of the “affect[s]” language: because the Court had earlier noted that the commerce power did not extend to wholly intrastate commerce, the Court was acknowledging that although the line between intrastate and interstate/foreign commerce would be difficult to draw, federal authority could not be construed to cover purely intrastate commerce. Commerce that did not affect another State could never be said to be commerce “among the several States.”

But even if one were to adopt the dissent’s reading, the “affect[s]” language, at most, permits Congress to regulate only intrastate commerce that substantially affects interstate and foreign commerce. There is no reason to believe that Chief Justice Marshall was asserting that Congress could regulate all activities that affect interstate commerce…

The second source of confusion stems from the Court’s praise for the Constitution’s division of power between the States and the Federal Government:

“The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government.”…

In this passage, the Court merely was making the well understood point that the Constitution commits matters of “national” concern to Congress and leaves “local” matters to the States. The Court was not saying that whatever Congress believes is a national matter becomes an object of federal control. The matters of national concern are enumerated in the Constitution: war, taxes, patents, and copyrights, uniform rules of naturalization and bankruptcy, types of commerce, and so on…. Gibbons‘ emphatic statements that Congress could not regulate many matters that affect commerce confirm that the Court did not read the Commerce Clause as granting Congress control over matters that “affect the States generally.” Gibbons simply cannot be construed as the principal dissent would have it.

I am aware of no cases prior to the New Deal that characterized the power flowing from the Commerce Clause as sweepingly as does our substantial effects test. My review of the case law indicates that the substantial effects test is but an innovation of the 20th century.

Even before Gibbons, Chief Justice Marshall, writing for the Court in Cohens v. Virginia, … noted that Congress had “no general right to punish murder committed within any of the States,” … and that it was “clear that congress cannot punish felonies generally,”… The Court’s only qualification was that Congress could enact such laws for places where it enjoyed plenary powers–for instance, over the District of Columbia…. Thus, whatever effect ordinary murders, or robbery, or gun possession might have on interstate commerce (or on any other subject of federal concern) was irrelevant to the question of congressional power.

United States v. Dewitt … marked the first time the Court struck down a federal law as exceeding the power conveyed by the Commerce Clause. In a two page opinion, the Court invalidated a nationwide law prohibiting all sales of naphtha and illuminating oils. In so doing, the Court remarked that the Commerce Clause “has always been understood as limited by its terms; and as a virtual denial of any power to interfere with the internal trade and business of the separate States.”… The law in question was “plainly a regulation of police,” which could have constitutional application only where Congress had exclusive authority, such as the territories….

In United States v. E. C. Knight Co., … this Court held that mere attempts to monopolize the manufacture of sugar could not be regulated pursuant to the Commerce Clause. Raising echoes of the discussions of the Framers regarding the intimate relationship between commerce and manufacturing, the Court declared that “[c]ommerce succeeds to manufacture, and is not a part of it.”… The Court also approvingly quoted from Kidd v. Pearson … :

” `No distinction is more popular to the common mind, or more clearly expressed in economic and political literature, than that between manufacture and commerce . . . . If it be held that the term [commerce] includes the regulation of all such manufactures as are intended to be the subject of commercial transactions in the future, it is impossible to deny that it would also include all productive industries that contemplate the same thing. The result would be that Congress would be invested . . . with the power to regulate, not only manufactures, but also agriculture, horticulture, stock raising, domestic fisheries, mining–in short, every branch of human industry.’ “…

If federal power extended to these types of production “comparatively little of business operations and affairs would be left for state control.”… Whether or not manufacturing, agriculture, or other matters substantially affected interstate commerce was irrelevant.

As recently as 1936, the Court continued to insist that the Commerce Clause did not reach the wholly internal business of the States…. The Federal Government simply could not reach such subjects regardless of their effects on interstate commerce.

These cases all establish a simple point: from the time of the ratification of the Constitution to the mid 1930’s, it was widely understood that the Constitution granted Congress only limited powers, notwithstanding the Commerce Clause. Moreover, there was no question that activities wholly separated from business, such as gun possession, were beyond the reach of the commerce power. If anything, the “wrong turn” was the Court’s dramatic departure in the 1930’s from a century and a half of precedent.

Apart from its recent vintage and its corresponding lack of any grounding in the original understanding of the Constitution, the substantial effects test suffers from the further flaw that it appears to grant Congress a police power over the Nation. When asked at oral argument if there were any limits to the Commerce Clause, the Government was at a loss for words…. Likewise, the principal dissent insists that there are limits, but it cannot muster even one example…. Indeed, the dissent implicitly concedes that its reading has no limits when it criticizes the Court for “threaten[ing] legal uncertainty in an area of law that . . . seemed reasonably well settled.”… The one advantage of the dissent’s standard is certainty: it is certain that under its analysis everything may be regulated under the guise of the Commerce Clause.

The substantial effects test suffers from this flaw, in part, because of its “aggregation principle.” Under so called “class of activities” statutes, Congress can regulate whole categories of activities that are not themselves either “interstate” or “commerce.” In applying the effects test, we ask whether the class of activities as a whole substantially affects interstate commerce, not whether any specific activity within the class has such effects when considered in isolation….

The aggregation principle is clever, but has no stopping point. Suppose all would agree that gun possession within 1,000 feet of a school does not substantially affect commerce, but that possession of weapons generally (knives, brass knuckles, nunchakus, etc.) does. Under our substantial effects doctrine, even though Congress cannot single out gun possession, it can prohibit weapon possession generally. But one always can draw the circle broadly enough to cover an activity that, when taken in isolation, would not have substantial effects on commerce. Under our jurisprudence, if Congress passed an omnibus “substantially affects interstate commerce” statute, purporting to regulate every aspect of human existence, the Act apparently would be constitutional. Even though particular sections may govern only trivial activities, the statute in the aggregate regulates matters that substantially affect commerce.

This extended discussion of the original understanding and our first century and a half of case law does not necessarily require a wholesale abandonment of our more recent opinions. It simply reveals that our substantial effects test is far removed from both the Constitution and from our early case law and that the Court’s opinion should not be viewed as “radical” or another “wrong turn” that must be corrected in the future. The analysis also suggests that we ought to temper our Commerce Clause jurisprudence.

Unless the dissenting Justices are willing to repudiate our long held understanding of the limited nature of federal power, I would think that they too must be willing to reconsider the substantial effects test in a future case. If we wish to be true to a Constitution that does not cede a police power to the Federal Government, our Commerce Clause’s boundaries simply cannot be “defined” as being ” `commensurate with the national needs’ ” or self consciously intended to let the Federal Government ” `defend itself against economic forces that Congress decrees inimical or destructive of the national economy.’ “… Such a formulation of federal power is no test at all: it is a blank check.

At an appropriate juncture, I think we must modify our Commerce Clause jurisprudence. Today, it is easy enough to say that the Clause certainly does not empower Congress to ban gun possession within 1,000 feet of a school.

Thomas was in the minority in Gonzalez v. Raich, where a 6-3 majority held that Congress’s Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law. Thomas’s dissent restates points he made in his opinion in United States v. Lopez, but delves further into the scope of the Necessary and Proper clause:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers….

Respondents’ local cultivation and consumption of marijuana is not “Commerce … among the several States.”… By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution’s limits on federal power. The majority supports this conclusion by invoking, without explanation, the Necessary and Proper Clause. Regulating respondents’ conduct, however, is not “necessary and proper for carrying into Execution” Congress’ restrictions on the interstate drug trade…. Thus, neither the Commerce Clause nor the Necessary and Proper Clause grants Congress the power to regulate respondents’ conduct….

The majority advances three reasons why the CSA is a legitimate exercise of Congress’ authority under the Commerce Clause: First, respondents’ conduct, taken in the aggregate, may substantially affect interstate commerce … ; second, regulation of respondents’ conduct is essential to regulating the interstate marijuana market, ante … ; and, third, regulation of respondents’ conduct is incidental to regulating the interstate marijuana market…. Justice O’Connor explains why the majority’s reasons cannot be reconciled with our recent Commerce Clause jurisprudence. The majority’s justifications, however, suffer from even more fundamental flaws….

The majority’s treatment of the substantial effects test is rootless, because it is not tethered to either the Commerce Clause or the Necessary and Proper Clause. Under the Commerce Clause, Congress may regulate interstate commerce, not activities that substantially affect interstate commerce–any more than Congress may regulate activities that do not fall within, but that affect, the subjects of its other Article I powers…. Whatever additional latitude the Necessary and Proper Clause affords, … the question is whether Congress’ legislation is essential to the regulation of interstate commerce itself–not whether the legislation extends only to economic activities that substantially affect interstate commerce….

…This Court has never held that Congress can regulate noneconomic activity that substantially affects interstate commerce…. To evade even that modest restriction on federal power, the majority defines economic activity in the broadest possible terms as the “ ‘the production, distribution, and consumption of commodities.’ ”… This carves out a vast swath of activities that are subject to federal regulation…. If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.” The Federalist No. 45, at 313 (J. Madison).

Moreover, even a Court interested more in the modern than the original understanding of the Constitution ought to resolve cases based on the meaning of words that are actually in the document. Congress is authorized to regulate “Commerce,” and respondents’ conduct does not qualify under any definition of that term. The majority’s opinion only illustrates the steady drift away from the text of the Commerce Clause. There is an inexorable expansion from “ ‘commerce,’ ” … to “commercial” and “economic” activity, … and finally to all “production, distribution, and consumption” of goods or services for which there is an “established … interstate market”…. Federal power expands, but never contracts, with each new locution. The majority is not interpreting the Commerce Clause, but rewriting it.

The majority’s rewriting of the Commerce Clause seems to be rooted in the belief that, unless the Commerce Clause covers the entire web of human activity, Congress will be left powerless to regulate the national economy effectively…. The interconnectedness of economic activity is not a modern phenomenon unfamiliar to the Framers…. Moreover, the Framers understood what the majority does not appear to fully appreciate: There is a danger to concentrating too much, as well as too little, power in the Federal Government. This Court has carefully avoided stripping Congress of its ability to regulate interstate commerce, but it has casually allowed the Federal Government to strip States of their ability to regulate intrastate commerce–not to mention a host of local activities, like mere drug possession, that are not commercial.

One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States. Yet this Court knows that “ ‘[t]he Constitution created a Federal Government of limited powers.’ ”… That is why today’s decision will add no measure of stability to our Commerce Clause jurisprudence: This Court is willing neither to enforce limits on federal power, nor to declare the Tenth Amendment a dead letter. If stability is possible, it is only by discarding the stand-alone substantial effects test and revisiting our definition of “Commerce among the several States.” Congress may regulate interstate commerce–not things that affect it, even when summed together, unless truly “necessary and proper” to regulating interstate commerce….

The majority also inconsistently contends that regulating respondents’ conduct is both incidental and essential to a comprehensive legislative scheme…. [T]he majority further claims that, because the CSA covers a great deal of interstate commerce, it “is of no moment” if it also “ensnares some purely intrastate activity.”… So long as Congress casts its net broadly over an interstate market, according to the majority, it is free to regulate interstate and intrastate activity alike. This cannot be justified under either the Commerce Clause or the Necessary and Proper Clause. If the activity is purely intrastate, then it may not be regulated under the Commerce Clause. And if the regulation of the intrastate activity is purely incidental, then it may not be regulated under the Necessary and Proper Clause….

It is safe to say that a proper reading of the Constitution, as exemplified in the authoritative opinions excerpted above, yields no authority for Obamacare. That monstrosity — the official, Orwellian title of which is the Patient Protection and Affordable Care Act (PPACA) — attempts to reach an aggregation known as “health care,” without any differentiation between interstate commerce, intrastate commerce, and activities that are part of neither, namely, the choices of individuals with respect to health insurance.

It may be a valid exercise of Congress’s power to regulate actual interstate commerce that touches on the provision of health care. It is not a valid exercise to aggregate everything called “health care” and to regulate it as if it were all within the reach of Congress. When that happens, there is no room left — in “health care” nor, by extension, any other loose aggregation of activities — for State action or individual choice.

In sum, Obamacare is neither a valid regulation of interstate commerce nor necessary and proper to a valid regulation of interstate commerce. It is a governmental seizure of 1/9th of the economy. The individual mandate — which is a central feature of that seizure — is nothing more than coercion. It is no less peremptory than the military draft.

And thus has the power to regulate interstate commerce evolved from its original purposes — the protection of American industry in its infancy and the prevention of trade wars among the States — to an instrument of dictatorship. For that is what it is, regardless of the participation of the “people’s representatives.”

It is long past time for the Supreme Court to reverse the long string of Commerce Clause decisions through which the federal government has acquired and exercised dictatorial power. Otherwise, we might as well shred the Constitution, once and for all, and quit paying lip-service to it.

Comments & Correspondence

Comments close 30 days after the publication of a post. If a post is no longer open for comment, or if you prefer to communicate privately, you may e-mail me at the Germanic nickname for Friedrich followed by the last name of the great Austrian economist and Nobel laureate whose first name is Friedrich followed by the 3rd and 4th digits of his birth year followed by the usual typographic symbol followed by the domain and extension for Google’s e-mail service — all run together.

If you submit a comment or suggestion by e-mail, I may acknowledge it or use it on this blog. But I may paraphrase what you say or edit it for the sake of concision, clarity, coherence, or brevity. I will not use your name unless you specifically authorize me to do so. Even then, I will put quotation marks around your name unless I am certain of your identity.

On Liberty and Libertarianism

What is liberty? It is peaceful, willing coexistence and its concomitant: beneficially cooperative behavior.

John Stuart Mill opined that "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." But who determines whether an act is harmful or harmless? Acts deemed harmless by an individual are not harmless if they subvert the societal bonds of trust and self-restraint upon which liberty itself depends.

Which is not to say that all social regimes are regimes of liberty. Liberty requires voice -- the freedom to dissent -- and exit -- the freedom to choose one's neighbors and associates. Voice and exit depend, in turn, on the rule of law under a minimal state.

Liberty, because it is a social phenomenon and not an innate condition of humanity, must be won and preserved by an unflinching defense of a polity that fosters liberty through its norms, and the swift and certain administration of justice within that polity. The governments in and of the United States have long since ceased to foster liberty, but most Americans are captives in their own land and have no choice but to strive for the restoration of liberty, or something closer to it.

Who can restore liberty? Certainly not the self-proclaimed libertarians who are fixated on Mill's empty harm principle and align with the left on social norms. Traditional (i.e., Burkean) conservatism fosters the preservation and adherence of beneficial norms (e.g., the last six of the Ten Commandments). Thus, by necessity, the only true libertarianism is found in traditional conservatism. I am a traditional conservative, which makes me a libertarian -- a true one.

Notes about Usage

“State” (with a capital “S”) refers to one of the United States, and “States” refers to two or more of them. “State” and “States,” thus used, are proper nouns because they refer to a unique entity or entities: one or more of the United States, the union of which, under the terms and conditions stated in the Constitution, is the raison d’être for the nation. I reserve the uncapitalized word “state” for a government, or hierarchy of them, which exerts a monopoly of force within its boundaries.

Marriage, in the Western tradition, predates the state and legitimates the union of one man and one woman. As such, it is an institution that is vital to civil society and therefore to the enjoyment of liberty. The recognition of a more-or-less permanent homosexual pairing as a kind of marriage is both ill-advised and illegitimate. Such an arrangement is therefore a “marriage” (in quotation marks) or, more accurately, a homosexual cohabitation contract (HCC).

The words “liberal”, “progressive”, and their variants are usually enclosed in quotation marks (sneer quotes) because they refer to persons and movements whose statist policies are, in fact, destructive of liberty and progress. I sometimes italicize the words, just to reduce visual clutter.

I have reverted to the British style of punctuating in-line quotations, which I followed 40 years ago when I published a weekly newspaper. The British style is to enclose within quotation marks only (a) the punctuation that appears in quoted text or (b) the title of a work (e.g., a blog post) that is usually placed within quotation marks.

I have reverted because of the confusion and unsightliness caused by the American style. It calls for the placement of periods and commas within quotation marks, even if the periods and commas don’t occur in the quoted material or title. Also, if there is a question mark at the end of quoted material, it replaces the comma or period that might otherwise be placed there.

If I had continued to follow American style, I would have ended a sentence in a recent post with this:

What a hodge-podge. There’s no comma between the first two entries, and the sentence ends with an inappropriate question mark. With two titles ending in question marks, there was no way for me to avoid a series in which a comma is lacking. I could have avoided the sentence-ending question mark by recasting the list, but the items are listed chronologically, which is how they should be read.

This not only eliminates the hodge-podge, but is also more logical and accurate. All items are separated by commas, commas aren’t displaced by question marks, and the declarative sentence ends with a period instead of a question mark.